IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CRI) NO.06/12
In the matter between
CHIEF SEKONYELA
APPELLANT
and
DIRECTOR OF PUBLC PROSECUTIONS
CORAM:
THRING JA
LOUW AJA
CLEAVER AJA
HEARD:
17 OCTOBER 2014
DELIVERED:
24 OCTOBER 2014
RESPONDENT
SUMMARY
Appeal against conviction of murder and sentence for
murder – accused not denying killing deceased – accused
not testifying – conviction and sentence of 20 years upheld.
JUDGMENT
CLEAVER AJA:
[1]
This is an appeal against the conviction of the
appellant in the High Court on a charge of murder
and also against the sentence of twenty years
imprisonment imposed on him.
[2]
The hearing of the appeal was preceded by the
hearing of an application for condonation of the late
noting of the appeal by the appellant. The appellant’s
explanation for this was that he was impecunious and
was able to obtain finance for the appeal only in
August of this year.
The crown opposed the
application on the grounds that the appellant had
failed to deal adequately or at all with his prospects
of success in the appeal. In our view the appellant
had made out an arguable case, at least in respect of
the appeal against sentence and the application was
therefore granted.
[3]
It is not necessary to recount the evidence given in
the High Court in detail.
The appellant did not
dispute that he had shot and killed the deceased, who
was his biological mother. This occurred on 21 July
2006. The evidence was that the deceased and her
daughter had just entered a motor vehicle in the yard
of the deceased’s home, preparatory to leaving for
work at Ha-‘Majane, where the deceased owned a
shop.
Shortly after the deceased had entered the
vehicle and had seated herself in the passenger’s front
seat, the appellant appeared on the scene. Without
uttering a word he went up to the vehicle and fired
three shots at the deceased, through the windscreen
and the side window next to where the deceased was
seated. She died instantly. He then fled the scene.
The firearm used was a pump action Brenneke shot
gun, a weapon used to bring down game such as wild
boar, lion, tiger, leopard and Cape buffalo. After the
conclusion of the case for the crown the appellant
closed his case without giving evidence and without
calling any witnesses in his defence.
I should
mention that although the accused had pleaded not
guilty, it would appear that he did so because of the
provisions of section 241 of the Criminal Procedure
and Evidence Act No.7 of 1981.
This provides in
broad terms that save in the case of a charge of
murder, where an accused pleads guilty to an offence
and the prosecutor accepts that plea, the High Court
may bring in a verdict without hearing any evidence.
It appears that the defence was of the view that
although the appellant did not dispute the charge, it
was necessary, because of the provisions of the
section, for him to plead not guilty to the murder
charge. The appellant did not testify in mitigation of
sentence, and also called no witnesses to testify in
mitigation on his behalf.
He was sentenced to 20
years’ imprisonment.
[4]
On behalf of the appellant it was submitted that the
evidence did not establish that the appellant had
intended to kill the deceased. It seems that counsel
intended this submission to mean that the killing was
not premeditated.
In support of this, counsel
submitted that the appellant had come to make peace
with the deceased to reconcile family differences but
was met with threats that he would die following in
the footsteps of his father and brother. No evidence
whatsoever to support this version was put before the
court and the submission cannot be accepted. In my
view, in the absence of any evidence by the accused,
the inference to be drawn from his actions that fateful
morning was irresistible, namely that he intended to
kill his mother when he fired three shots at her from
close range with a powerful gun. In my view there is
no merit in the appeal against the conviction.
[5]
In the absence of any evidence from the appellant, the
court a quo had only the following information about
his personal circumstances;
1)
He was twenty years old at the time of the
shooting.
2)
He was a first offender.
3)
He was the father of a young child.
4)
Although not in custody, he lived in a state of
anxiety during the six years from the time of the
shooting up to the time that the case against him
was completed.
[6]
With reference to the periods of imprisonment
imposed for murder in a number of decided cases and
the personal circumstances of the appellant, counsel
for the appellant submitted that this court, in its
discretion, should reduce the appellant’s sentence to
one of fifteen years’ imprisonment.
[7]
The test to be applied on appeal against sentence is
trite. It is that the discretion to impose a sentence
rests with the trial judge.
Because that is so, an
appeal court will not interfere with the sentence
unless it is shown that the trial judge exercised his
discretion in an improper or unreasonable manner.
See S v Pieters 1987(3) SA717 (AD) at 727E.
The principle was expounded upon by Marais JA in S
v Malgas 2001(1) SACR 469 (SCA) at 478 (d-g) as
follows“A court exercising appellate jurisdiction cannot,
in the absence of material misdirection by the trial
court, approach the question of sentence as if it
were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so would be to usurp the sentencing
discretion of the trial court.
Where material
misdirection by the trial court vitiates its exercise
of that discretion, an appellate Court is of course
entitled to consider the question of sentence
afresh. In doing so, it assesses sentence as if it
were a court of first instance and the sentence
imposed by the trial court has no relevance. As it
is said, an appellate Court is at large. However,
even in the absence of material misdirection, an
appellate court may yet be justified in interfering
with the sentence imposed by the trial court. It
may do so when the disparity between the
sentence of the trial court and the sentence which
the appellate Court would have imposed had it
been the trial court is so marked that it can
properly described as ‘shocking’, ‘startling’ or
‘disturbingly inappropriate.”
[7]
An extremely vexing aspect of this matter is the
failure of the appellant to give any evidence in
mitigation of sentence. Something must have driven
him to shoot his mother in cold blood, yet he chose
not to take the court into his confidence and explain
why he had done so. Had he done so, the trial court
would have been able to take his explanation into
account when deciding on an appropriate sentence.
[8]
While the sentence of twenty years may seem on the
high side, it cannot in my view be said that the trial
judge acted improperly or unreasonably in imposing
the sentence. The sentence is also not, in my view,
shocking, startling or disturbingly inappropriate.
Indeed, as counsel for the crown reminded us, having
regard to the cold blooded manner of the murder, the
offence could justify the ultimate penalty.
It is clear that the trial judge took all the relevant
factors into account in her well-reasoned judgment
on sentence.
[9]
The appeal is dismissed and the judgment and
sentence of the High Court is confirmed.
____________
R. B. CLEAVER
ACTING JUSTICE OF APPEAL
I agree
____________
W. G. THRING
JUSTICE OF APPEAL
I agree
___________
W. J. LOUW
ACTING JUSTICE OF APPEAL
For Appellant:
L. A. Molati
For Crown:
T. Mokuku